| Ill. | Oct 26, 1893
delivered the opinion of the Court:
We are of opinion that the court erred in declining to admit the evidence showing the adjudication in the county court, determining that appellant’s property was assessed its fair proportion of the cost of the proposed improvement and expense of levying and collecting the original assessment. The deficiency for which the supplemental assessment is proposed to be levied did not exist because the original estimate was insufficient to complete the improvement and pay the expense of levying and collecting the assessment, but because the court found and adjudged that appellant’s premises, with others, were assessed more than their fair and just proportion of the cost of the improvement and of the levy and collection of the assessment. Upon the return of the original assessment roll, objection being made thereto by the owners of the property assessed, the court was authorized, at any time before final judgment, “to modify, alter, change, annul or confirm” the same, or might, in the language of the statute, “cause any such assessment to be re-east by the same commissioners whenever it shall be necessary for the attainment of justice, or may appoint other commissioners in the place of all or any of the commissioners first appointed, for the purpose of making such assessment, or modifying, altering, changing or re-casting the same, and may take all such proceedings and make all such orders as will be necessary to make a true and just assessment of the cost of such improvement according to the principles of” the Cities and Villages act. (Rev. Stat. sec. 33, art. 9, chap. 24.) The 30th section of article 9 gives to persons interested the right to appear and file objections. The 31st section provides for the manner of hearing the same, which, it is provided, “shall be conducted as in other eases at law, and if it shall appear that the premises of the objector are assessed more or less than they will be benefited, or more or less than their proportionate share of the cost of the improvement,” the jury, or the court sitting in place of a jury, are required to so find, and to find the amount for which such premises ought to be assessed, and judgment is to be rendered accordingly.
The question to be tried upon the objection to the original assessment roll filed by appellant, as shown by the offered evidence, was, whether, in the original assessment, appellant’s premises were assessed more than their proportionate share of the cost of said improvement and the cost of levying and collecting the assessment. The court, after hearing the evidence, as it is recited in its judgment, found that said premises were, in and by the assessment roll returned, assessed more than their proportionate share of the cost of the improvement, and in accordance with the statute found the just proportion of the cost of said improvement, etc., which should be assessed upon said premises of appellant to be the sum of $2679.76, “and no more,” and the assessment roll was modified accordingly, and judgment rendered confirming it thus modified. That the court.had jurisdiction both of the parties "and subject matter is not questioned, and its judgment was conclusive of the question determined. The only evidence before the court of the cost of the improvement was the estimate of such cost authorized by law to be made by the commissioners appointed in the ordinance to estimate the same, (Rev. Stat. sec. 20, chap. 24,) and which report the village council had approved. (Sec. 21, chap. 24.) The court not finding that the premises were assessed more than they were benefited, w'as required to so adjust the burthen that each piece or parcel of land should bear its just proportion of the cost of the improvement thus estimated. There was no other basis upon which the court could have 'apportioned the total cost among the properties affected.
The aggregate of the original assessment roll, as modified, and the supplemental assessment involved in this case, being less than the estimated cost of said improvement as returned to and approved by the board of trustees of the town, it necessarily follows that the court, in its judgment of confirmation of the original assessment roll, found and adjudged that $2679.75, and no more, was chargeable against the property of appellant as its fair and just proportion of the cost of the improvement as estimated by the commissioners appointed to make the same, together with the cost of levying and collecting the assessment, and to permit the supplemental assessment to be made upon his land, is to charge upon it the amount of such supplemental assessment more than the court adjudged to be its just proportion of the total cost to be apportioned upon the lands and lots benefited by the proposed local improvement.
The 47th section of article 9 of the Cities and Villages act provides : “If, in any case, the first assessment prove insufficient, a second may be made in the same manner, as nearly as may be, and so on until sufficient moneys shall have been realized to pay for such public improvement. If too large a sum shall, at any time, be raised, the excess shall be refunded ratably to those by whom it shall be paid.” “The first assessment” is that made by the commissioners appointed to distribute, as between the public and the property owners, the cost of the improvement, and in which they apportion among the several properties benefited their just and fair share of the total amount required to be borne by the private property. That is primarily determined by the commissioners appointed to apportion the estimated total cost of the improvement, and it is clearly contemplated that they shall apportion either to the public, to be borne by general taxation, or to the property benefited, or both, the entire estimated cost of the improvement proposed to be made. That was done in this case. In the original assessment $338,980.11 was apportioned to and assessed upon property benefited, and $9962.94 apportioned ' as benefit to the public and assessed to the town of Cicero, making the entire estimated cost of $348,943.05, as returned by the commissioners appointed to make such estimate. As we have seen, of this sum apportioned and assessed upon private property benefited, the court deducted, in the aggregate, $57,541.51, for the reason that certain of the property, including appellant’s premises, was assessed mdre than its just proportion of the total cost. The court, instead of requiring the assessment to be re-cast, and equalizing it by extending the sum deducted upon other property assessed less than its proportionate share, modified the assessment roll by reducing the assessments that were in excess, to their just and fair proportion of the whole. It is clear, as it seems to us, that the effect of the supplemental assessment would be to destroy the equal distribution contemplated by the statute, and make the property of appellant bear a portion of the burden that should have been borne by other property not assessed its fair and proportionate share. This can not be done. The same equality in the imposition of the burthen must be observed whether the money necessary to complete the improvement is raised by a first or supplemental assessment, and the court having jurisdiction of the parties and subject matter, its judgment apportioning the benefits and modifying and confirming the assessment roll is conclusive upon the parties. The municipal authority, under the guise of a supplemental assessment, can not impose upon the property assessed, a greater burthen than the benefits accruing to it from the improvement, or cast upon it more than its just proportion and share of the total cost of the improvement made by the municipality.
Other errors are assigned, but in the view taken, discussion of them is unnecessary.
The judgment of the county court is reversed, and the cause remanded.
Judgment reversed.